The space for democratic debate in Turkey has shrunk alarmingly following increased judicial harassment of large strata of society, including journalists, members of parliament, academics and ordinary citizens, and government action which has reduced pluralism and led to self-censorhip. The authorities should urgently change course by overhauling criminal legislation and practice, re-develop judicial independence and reaffirm their commitment to protect free speech

Legitimate dissent and criticism of government policy is vilified and repressed, thus shrinking the scope of democratic public debate and polarising society.

The deterioration goes hand-in-hand with the erosion of the independence and impartiality of the Turkish judiciary. While this problem affects the whole judiciary, it is in particular the role of the criminal judges of peace that is the most concerning, because these formations have transformed into an instrument of judicial harassment to stifle opposition and legitimate criticism and are now at the origin of some of the most obvious violations of the right to freedom of expression.

A first step is to lift the current state of emergency and reverse the numerous unacceptable infringements of freedom of expression, and in particular media freedom and academic freedom.

Strasbourg, 15 February 2017 – “The space for democratic debate in Turkey has shrunk alarmingly following increased judicial harassment of large strata of society, including journalists, members of parliament, academics and ordinary citizens, and government action which has reduced pluralism and led to self-censorhip. This deterioration came about in a very difficult context, but neither the attempted coup, nor other terrorist threats faced by Turkey can justify measures that infringe media freedom and disavow the rule of law to such an extent. The authorities should urgently change course by overhauling criminal legislation and practice, re-develop judicial independence and reaffirm their commitment to protect free speech” said today Nils Muižnieks, Council of Europe Commissioner for Human Rights, while publishing a Memorandum on freedom of expression and media freedom in Turkey based on the findings of two visits to the country that he conducted in April and September 2016.

The Commissioner regrets that tangible progress concerning media freedom and freedom of expression which was painstakingly achieved by Turkey in co-operation with the Council of Europe, was halted and reversed in recent years, leading to an already alarming situation at the time of the Commissioner’s visit in April 2016. “In particular, the overly wide application of the concepts of terrorist propaganda and support for a terrorist organisation, including to statements and persons that clearly do not incite violence, and its combination with an overuse of defamation, has put Turkey on a very dangerous path. Legitimate dissent and criticism of government policy is vilified and repressed, thus shrinking the scope of democratic public debate and polarising society.” This situation has significantly worsened under the on-going state of emergency which confers almost limitless discretionary powers to the Turkish executive to apply sweeping measures, including against the media and NGOs, without any evidentiary requirement, in the absence of judicial decisions and on the basis of vague criteria of alleged “connection” to a terrorist organization.

Media pluralism and independence, in particular, have been casualties of these developments characterised notably by the use of state resources to favour pro-governmental media, pervasive internet censorship, arbitrary exclusion of media and journalists, takeover or closure of media outlets critical to the authorities, violence and reprisals against media workers and the incarceration of over 150 journalists.

The Commissioner also underscores that this deterioration goes hand-in-hand with the erosion of the independence and impartiality of the Turkish judiciary. “While this problem affects the whole judiciary, it is in particular the role of the criminal judges of peace that is the most concerning, because these formations have transformed into an instrument of judicial harassment to stifle opposition and legitimate criticism and are now at the origin of some of the most obvious violations of the right to freedom of expression.”

The Commissioner urges the Turkish political leaders in the strongest possible terms to change course and to display the responsibility and tolerance expected in a democratic society. They must redevelop the political will necessary to tackle the very long-standing systemic issues suppressing freedom of expression, including on the Internet, and finally execute the numerous judgments of the European Court of Human Rights, some of which date decades back.

“A first step is to lift the current state of emergency and reverse the numerous unacceptable infringements of freedom of expression, and in particular media freedom and academic freedom, that it engendered. In addition, the Turkish authorities must completely overhaul the Criminal Code and the Anti-Terrorism Law so as to align law and practice with the jurisprudence of the European Court of Human Rights. Beyond these deficiencies, it is crucial to change a judicial culture where judges and prosecutors interpret and apply laws in a way that consistently undermines freedom of expression and media freedom in Turkey.”

Conclusions and recommendations

The Commissioner recalls the long-established case-law of the ECtHR which unambiguously 122.states that the freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress. It is applicable not only to information or ideas that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no “democratic society”.

The Commissioner considers that the facts, figures and examples mentioned above, while far 123.from being exhaustive, demonstrate clearly the serious deterioration regarding media
freedom and freedom of expression in Turkey since his predecessor’s 2011 report on the subject. In the Commissioner’s opinion, this deterioration represents an existential threat to Turkish democracy.

The Commissioner considers that practically all the recommendations in his predecessor’s 124.aforementioned report remain valid. This includes the need for a complete overhaul of the Turkish Criminal Code, and in particular of Articles 125 (defamation), 216 (incitement to hatred, degrading a sector of the public or its religious values), 220 §6 (committing an offence on behalf of a criminal organisation without being a member) and 220 §7 (aiding and abetting a criminal organisation without being a member), Articles 285 and 288 (confidentiality of investigations and attempts to influence the judiciary), Article 299 (insulting the President of the Republic), Article 301 (insulting the Turkish nation, the Republic, organs and institutions of the state), 314 (establishment, command or membership of an armed organisation), Article 318 (discouraging persons from doing their military service). The overhaul should take full account of the case-law of the ECtHR and the relevant opinion of the Venice Commission. Similarly, the Anti-Terrorism Law, and in particular its Article 7 §2 (propaganda on behalf of a terrorist organisation), needs to be reviewed completely in order to make it ECHR-compliant.

Considering the failure of past amendments of these provisions to prevent new human rights 125.violations, the Commissioner considers that many of these provisions need to be simply abrogated. Defamation, in particular of public officials, should no longer be a criminal offence but, where absolutely necessary, could be subject to proportionate civil sanctions only. It is also clear that legislative changes in this field cannot be piecemeal and must address some structural deficiencies. In the Commissioner’s view, this must primarily include the introduction of a systematic reference to the defences of truth and of public interest, to the concept of contribution to public debate, protection of journalistic sources and of the obligation for the judiciary to properly balance any other imperative against freedom of expression and media freedom in all relevant cases, in particular by taking full account of the role of journalism in a democratic society.

A profound suspicion of freedom of expression and, in particular, of non-consensual, 126.dissenting, shocking or disturbing statements, permeates the Turkish Constitution and legislation. Whereas the Turkish Parliament recently adopted amendments to the Turkish Constitution which are expected to be submitted to a referendum, the Commissioner regrets to observe that the serious shortcomings in the Constitution’s approach to human rights, including freedom of expression, are not at all being addressed and invites the Turkish authorities to remedy this situation. Other crucial legislative changes which are urgently needed concern the Internet Law and the Radio and Television Law, laws and regulations which have been used to punish and stifle critical media and journalists, for example as regards public announcements and press cards, as well as the legal framework affecting academic freedoms.

Beyond the important deficiencies of the Turkish legal system, the Commissioner emphasises 127.that a change in attitudes and actions of the Turkish judiciary is a far greater challenge that must be met. Systemic problems in the interpretation and application of legal provisions by judges and prosecutors, highlighted by the Commissioner on numerous occasions, as well as in countless judgments of the ECtHR, have consistently undermined freedom of expression and media freedom in Turkey. The Commissioner’s predecessor had underlined, in his relevant report almost six years ago, that in order to eliminate undue restrictions on freedom of expression and media freedom, independence of the judiciary from political or other pressure was key.

The validity of that statement was unfortunately proved at different stages in the intervening 128.period. The rapid deterioration in freedom of expression and media freedom went hand-in-hand with the erosion of the independence of the Turkish judiciary. The latter culminated in the drastic measures taken under the state of emergency, which display a serious disregard of the principles of the independence of the judiciary. In this environment of fear, the remaining judges and prosecutors have clearly reverted to their state-centric approach, thereby offsetting progress which was achieved painstakingly through the sustained efforts of the Turkish authorities themselves and the support of various bodies of the Council of Europe.

The criminal judges of the peace, in particular, appear to have quickly transformed into an 129.instrument of harassment to stifle opposition and legitimate criticism of the Turkish government, as well as of controlling the information available to the general public, including on the Internet, in co-operation with the prosecutors who have become even more active in targeting critical voices than before. The Commissioner considers that a serious review of these formations is necessary, and urges the Turkish authorities to follow the guidance of Council of Europe bodies, and notably of the Venice Commission whose opinion on this question is pending.

Prosecutors and courts must stop using criminal procedures, and in particular detention on 130.remand, to punish and discourage the exercise of freedom of expression, including on the Internet, where there is an absence of direct, incontrovertible evidence establishing criminal wrongdoing and membership of a criminal organisation, in particular when the only basis is the content of journalistic writings or perceived affiliation based on spurious evidence. However, in the Commissioner’s opinion, failure to address deep-rooted problems of independence of the judiciary, which have reached alarming levels recently, will render all efforts to improve freedom of expression and media freedom moot. In this connection, the Commissioner must express his grave concerns about the effects of constitutional amendments recently adopted by the Turkish Parliament, as they foresee a significant further diminution of the autonomy of the Turkish judiciary vis-à-vis the executive and legislative branches.

When confronted on problems relating to freedom of expression and media freedom, Turkish 131.authorities have tended to minimise the issues, sometimes referring to the existence of similar provisions in the legislation of other member states, but ignoring crucial differences in their interpretation or the scale of their application. In other instances, they have invoked the independence of the judiciary or pointed to cases where proceedings are followed by acquittals. This attitude appears to reflect a disregard for the profound chilling effect which is currently affecting not only the Turkish media, but the entire Turkish society.

The Commissioner regrets to observe a significant decrease in the commitment of the 132.Turkish authorities to improve freedom of expression and compliance with the ECHR over the last few years. For example, a government action plan to improve such compliance, in particular with respect to freedom of expression, remained a dead letter, and the Constitutional Court, rather than receiving the support it needed in this critical period, was on the contrary attacked for its most progressive and ECHR-compliant judgments.

The Commissioner considers that the main obstacle to an improvement of this situation is a 133.lack of political will, first of all to acknowledge, and then to address the problems highlighted in the body of this memorandum. Indeed, many of the measures which led to the worst forms of chilling effect and impoverishment of the Turkish media landscape were deliberate choices, such as the outright closure of more than 150 media companies. Similarly, there are many examples where the remarkable intolerance of public figures to freedom of expression enabled or encouraged smear campaigns, hate speech and physical violence. In the current context, the judiciary can unfortunately not be expected to resist this overwhelming political pressure, and protect freedom of expression in an ECHR-compliant manner.

The Commissioner is aware that this deterioration in media freedom and freedom of 134.expression, as well as increased Internet censorship, came about in a very difficult context: Turkey has been facing civil war at its borders while generously hosting more than three million refugees in an exemplary fashion, as well as a failed coup attempt and innumerable deadly terrorist attacks perpetrated by many violent terrorist organisations. The threats and dangers it must deal with daily are real and formidable. However, the overly wide application of the concept of terrorist propaganda and support to a terrorist organisation, including to statements and persons that clearly do not incite violence, reflects a mistaken belief that restricting freedom of expression in violation of international human rights norms will help solve these problems. Violence and the threat to use violence is the defining component of the concept of “terrorism”, which must not be used as a catch-all label to punish statements that do not contain these elements, even when these statements are non-consensual, shocking or politically embarrassing.

This, in combination with a clear overuse of defamation, has put Turkey on a very dangerous 135.path, where legitimate dissent and criticism of government policy is vilified and repressed,
shrinking the scope of democratic public debate, including directly inside the Turkish Parliament, and polarising the society. Experience has shown time and time again that it is precisely in such situations that hatred and violence, as well as terrorist organisations, thrive. Protection of human rights, of which media freedom and freedom of expression are the bedrock, is the absolute precondition to the establishment of social peace and a healthy democracy.

The Commissioner urges the Turkish political leaders in the strongest possible terms to 136.change course and start separating what is a terrorist action from criticism and dissent, and to display the responsibility and tolerance expected in a democratic society. They must redevelop the political will necessary to tackle the very long-standing systemic issues supressing freedom of expression, including on the Internet, and finally execute the numerous judgments of the ECtHR, some of which date decades back.

It is clearly impossible to do so under the current state of emergency, and the Commissioner 137.once more calls on the authorities to stop it and reverse the numerous unacceptable infringements of freedom of expression, and in particular media freedom and academic freedom, that it engendered. The latest decrees adopted on 23 January 2017, while representing a step in the right direction, are not addressing the core concerns of the Commissioner other than possibly the one on remedies, depending on the future effectiveness of the new commission.